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The WIRKIN phenomenon entertained us during the Christmas holidays, monopolising TikTok USA.
What? You don’t know what we are talking about?
For those who have not had time to tediously scroll through the ‘for you’ feed on the famous social network, here is a brief summary of the case and an examination of the critical issues linked to industrial property.
The Case
The US megastore chain Walmart has introduced a bag into its selection that accurately resembles the design of the famous Birkin bag by Hermès. Thisbag, initially created for Jane Birkin, has established itself over time as a symbol of exclusive luxury, thanks to its high price and rarity, made even more exclusive by long waiting lists and a limited production.
The bagoffered by Walmart and renamed ‘Wirkin’ on social media by blending the two names Walmart and Birkin, was an extraordinary success, and quickly sold out from both physical and online stores.
Numerous videos can still be seen of users searching for the ‘Wirkin’ on empty shelves, set against others of ‘lucky’ shoppers.
Curiously, what we might call a Birkin ‘dupe’, to use a term so dear to the world of social media, has become a trendy accessory to show off on platforms such as Instagram and TikTok, almost on a par with the legendary original version.
Indeed, it is interesting to observe the creativity of users and creators/influencers who poked fun at the trend, claiming on TikTok that their authentic “Birkins” were actually working-class Wirkins they had just bought.
Some went as far as making technical comparisons to highlight the absence of visible differences between the bags, apart from the raw material used.
The motto that was quickly coined reveals something of the underlying meaning: ‘wirkin bags for wirkin class’.
“At the egalitarian cost of $78, even ‘ordinary’ working women can (or rather ‘could’, as the bag quickly sold out and is currently not for sale) pretend to own an exclusive, luxury item”.
The analysis
Before analysing the matter from a legal and intellectual property perspective, we would like to analyse this event from a social point of view.
Undoubtedly, Walmart’s behaviour prompts us to return to a long-standing reflection on the new ‘wind of change’ that blows ever more insistently among consumers, who are now more aware and more attentive to the real value of things.
It seems that people finally have the courage to become aware of certain aspects of the fashion world that they previously chose to ignore. Indeed, an increasing segment of consumers, on the one hand condemns the world of fast fashion for what goes on behind the scenes, wholly unacceptable from an ethical and human point of view, and on the other hand is beginning to assess more carefully the real value, especiallyof items of clothing, bags and related accessories.
This is also testified by Raffaello Napoleone, CEO of Pitti Immagine 2025, who, interviewed by Italy’s Rai2 News[1], when asked what the new consumer demands were, stated ‘A product whose price reflects its real value. There has recently been a hike, stated even by the big brands, that is too high compared to the specific and actual value of the product’.
In this context, one can understand how the phenomenon of the so-called dupe mania has taken hold and thus, back to the case at hand, also the success of Walmart’s WIRKIN.
Consumer perception
A dupe is nothing more than a replica of a product, with an aesthetic appearance wholly alike to the original, but often representing its ‘low-cost version’. The attractive value and advertising capital embedded in the original product’s brand are undoubtedly undermined by this phenomenon, which is the expression of a real act of parasitic competition.
The dupeis perceived as a smart purchase, especially by younger consumers with tighter budgets. This is not classical counterfeiting, because the original trade mark is not reproduced. Rather, the dupe affects precisely products whose brand name is not overtly expressed, such as the Birkin by Hermès, which does not visibly bear any distinctive mark, except for its shape, which as we will see was registered as a trademark..
Often, the dupe is able to attract consumers by leveraging on the product’s appeal in a cheapened version. Sometimes, however, it leverages on the number of products sold, just as in the case of Uniqlo’s Mary Poppins Bag, whose selling price was only 20 euro, while the dupecost 5 euro. The damage, given the number of replicas marketed, was still substantial, especially in terms of lost profit.
Conclusions
Notwithstanding the above, and while understanding the new generations’ commendable rising awareness of the real value of a product, one must also ask oneself whether and with what criteria to define what is the ‘right’ price for a product.
In other words: is it correct to consider the price only on the basis of the material used to make the item, its decorations and accessories, neglecting the investments made to create that specific shape, having that exact exterior appearance that has caught the attention of consumers, as well as the resources employed to establish that specific brand image on the target market?
Is it permissible, therefore, to undermine industrial property rights, the function of which is precisely to protect these investments by granting exclusive rights to their owner (or right holder)?
But what are Hermès’ main registered and actionable rights?
Firstly, looking at the territory of the United States, where all this took place, Hermesappears to be the owner of two trade marks: one concerning the famous clasp, the other covering the front and side of the handbag as a whole, excluding the handle, respectively pictured below[2].
The French luxury brand might perhaps thus try to challenge Walmart’s conduct by claiming infringement of its trade mark, as well as possible trade dress on the design of the bag and, lastly, possibly also for unfair competition law for parasitically exploiting the reputation and values inherent in the figure of the item in question.
With regard to the above question, however, we would like to cite the Latin aphorism ‘In media res stat virtus’. Specifically, famous brands might allow that a product, which has already become an ‘iconic’ label, can still remain exclusive, despite its high but not insane price, as long as it is not too far removed from the real value of the product itself. Only then, perhaps, by fulfilling the wish of a larger number of people, could we avoid the losses resulting from the purchase of dupes. On the other hand, however, the consumer should be able to admit that if a product is unaffordable, it should not be owned at all costs and, above all, he or she should not support the parasitic competition of the manufacturer of a similar, unauthorised product.
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[1] Edition of 14 January 2025, 1 p.m., available at the following link: https://www.raiplay.it/video/2025/01/Tg2-ore-1300-del-14012025-ce0cbe0d-048a-4aa8-8fd5-75c4631c3348.html
[2]https://tsdr.uspto.gov/#caseNumber=74336038&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch